CITATION: Koplowitz v Savage, 2016 ONSC 6629
COURT FILE NO.: FS-13387171
DATE: 20161031
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JORDAN KOPLOWITZ
Applicant
– and –
LAURA KATHERINE SAVAGE
Respondent
Corinne A. Muccilli, for the Applicant
Alice M. Palumbo, for the Respondent
HEARD: September 12, 13, 14, 15, 16, 19, 20, 21 and 22, 2016
REASONS FOR DECISION
DIAMOND J.:
Overview
[1] The Applicant, Jordan Koplowitz (“Jordan”) commenced a relationship with the respondent, Laura Katherine Savage (“Laura”) in or around 2007. By early 2008, they were living together.
[2] On September 24, 2009, Laura gave birth to their first and only child, Gabriel Danger Savage (“Gabriel”). Jordan and Laura were married on September 2, 2010.
[3] While there is some disagreement as to when the parties actually separated, there is no dispute that on or about November 6, 2012, Laura told Jordan that she wanted to separate. The parties did subsequently attend one meeting with a marriage counsellor, although Laura did not appear to be very interested in any reconciliation. Laura subsequently moved out and began living on her own in or around mid-January 2013.
[4] At the outset of this family proceeding, Jordan sought:
a) an order that the parties be granted joint custody of Gabriel,
b) an order changing Gabriel’s name to “Gabriel Danger Savage Koplowitz”, and
c) an order mandating the parties to obtain and maintain life insurance as security for their respective support obligations.
[5] In response, Laura sought:
a) an order granting her sole custody of Gabriel with access to Jordan as agreed upon between the parties,
b) an order that Jordan pay Laura child support in an amount consistent with the Child Support Guidelines,
c) an order precluding Jordan from communicating directly or indirectly with her, together with an order that he not attend or be within 500 meters of her residence or place of employment; and
d) a referral order to the Office of the Children’s Lawyers (“OCL”) for a custody/access assessment pursuant to section 112 of the Courts of Justice Act.
[6] Prior to the commencement of trial, Jordan amended his application to seek sole custody of Gabriel, with his request for joint custody now being in the alternative. Jordan also sought an order imputing Laura’s income to be $30,000.00 for the purpose of calculating child support, along with an order that he be permitted to make the dependent credit for income tax purposes retroactively to the year of separation, and going forward as agreed between the parties or as ordered by the Court.
Issues to be determined
[7] Over the course of nine days, I heard evidence from 11 witnesses, including Jordan, Laura, some of their family members and friends, one police officer and a social worker clinician retained by the OCL.
[8] By the conclusion of the trial, the issues had somewhat narrowed. This was largely due to the fact that, in part, the parties have tried to conduct themselves in accordance with an Agreement which they drafted themselves and signed on or about August 22, 2013 (the “Agreement”). I will have more to say about this Agreement hereinafter.
[9] I was asked to determine the following issues:
Issue #1 What custody arrangements, if any, ought to be ordered for Gabriel?
Issue #2 What is the proper amount for child support, and should Jordan be given any credit(s) for payments he has made to Laura to date?
Issue #2 Should Gabriel’s name be formally changed to Gabriel Savage Koplowitz?
[10] I shall now decide each issue in turn.
Issue #1 What custody arrangement, if any, ought to be ordered for Gabriel?
Legal Principles
[11] The parties’ respective requests for custody orders are to be determined pursuant to section 16(1) of the Divorce Act, R.S.C. 1995 C.3, which enables the Court to make “an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage”.
[12] In V.K. v. T.S. 2001 ONSC 4305, Justice Chappel set out an extensive and helpful review of the legal principles to be considered and applied by the Court:
“As this is a divorce case, the legislative principles that apply are those set out in section 16 of the Divorce Act. Section 16(1) of that Act provides that a court may make an order respecting custody of or access to a child of the marriage on application by a spouse or any other person. Section 16(4) of the Act clarifies that in making an order under section 16, the court may grant custody and/or access to more than one person. Section 16(6) of the Act gives the court a broad discretion to include any terms, conditions or restrictions in a custody and access order that it considers to be fit and just.
Section 16(8) of the Divorce Act specifies that the sole criterion for determining custody and access issues under the Divorce Act is “the best interests of the child of the marriage, as determined by reference to the conditions, means, needs and other circumstances of the child.” The Supreme Court of Canada has held that these interests must be ascertained from the perspective of the child rather than from the parents’ perspective; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child.
Sections 16(9) and (10) of the Divorce Act set out additional principles that the court must apply in carrying out the best interests analysis. Section 16(9) stipulates that the court may not take into consideration the past conduct of a person, unless the conduct is relevant to the ability of that person to act as a parent of the child. Section 16(10) provides that in making a custody and/or access order, the court “must give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child”. To that end, the court is required to consider the willingness of each spouse who is claiming custody or access to facilitate such contact. The goal of maximum contact with each parent is not absolute, but the legislation is clear that maximum contact can only be restricted to the extent that contact conflicts with the best interests of the child.
Unlike many provincial and territorial statutes dealing with custody and access, the Divorce Act does not spell out a lengthy list of other factors for the court to consider in assessing the best interests of the child. The flexible and imprecise nature of the best interests test set out in the Divorce Act renders a measure of indeterminacy inevitable, but recognizes the paramountcy of the child’s needs and interests over the interests of expediency and predictability.
In an effort to obtain some assistance in applying the best interests test, courts across the country have decided that provincial and territorial legislation setting out criteria to consider in carrying out the “best interests” analysis may be referred to as guides in deciding cases under the Divorce Act. The relevant statutory provision in Ontario is section 24 of the Children’s Law Reform Act, which provides as follows:
Merits of application for custody or access
- (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).
Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.
Past conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).
Violence and abuse
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child. 2006, c. 1, s. 3 (1).”
(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).”
[13] In the description of Issue #1, I use the words “if any” because a “best interests of the child” analysis requires the Court to consider all possible options, and not simply the options suggested by the parties. As held by the Court of Appeal for Ontario in M. v. F. 2015 ONCA 277, no Court is required to make a custody order, either sole or joint. As noted by Justice Tzimas in Rocki v. Wencel 2016 ONSC 3758, the relevant custody provisions of the Children’s Law Reform Act are permissive, and not mandatory.
General Themes
[14] Jordan and Laura both have strong personalities. They are passionate, especially when it comes to Gabriel’s well-being. Their marriage was described by themselves, and other witnesses, as rather combustible.
[15] Since their separation, and in particular since a few weeks after they signed their Agreement, Jordan and Laura have encountered significant difficulty in maintaining open and direct communication. Jordan began recording most, if not all, of their phone or in person conversations, many of which were transcribed and entered as exhibits at trial. While Jordan testified that he placed the recording device before Laura during at least one in person conversation, in my view Laura was, for the most part, unaware or forgot that she was being recorded. As such, I find that there was a likelihood that Jordan’s statements to Laura could have been rehearsed, intentionally subdued or simply tailored to “read better” for the Court. As such, while I appreciate Jordan’s efforts to provide the Court with a “real time” discourse of the parties’ post-separation experiences, I have afforded less weight to those transcribed recordings than Jordan was seeking at trial.
[16] Jordan and Laura remain in a high conflict relationship. Yet each of them was sufficiently clear in their respective testimony that they considered each other to be very good parents to Gabriel. These observations came up on several occasions during the trial, and neither Jordan nor Laura hesitated in confirming their shared view that they are both good parents.
[17] I agree with their observations. The Agreement (described in greater detailed below) was negotiated between them, in the absence of their lawyers, at Jordan’s kitchen table. There is no doubt that both Jordan and Laura worked very hard that day to put their respective differences aside and come up with a parenting plan and a residential schedule that worked for them, and more importantly for Gabriel.
[18] This is what makes my decision a difficult one. It is not as if one party has attempted to throw the other party’s parenting skills and abilities under the proverbial bus. While each of Jordan and Laura do take some issue with the way the other has handled a few isolated incidents, for the most part they are keenly aware of the “maximum contact” principle as they want Gabriel to have a strong attachment to both parents without prolonged separations.
[19] The real issue for me to decide is not custody, but one of decision-making. Jordan and Laura have been dissatisfied with each other’s approaches to certain parenting matters, and as such have apparently “dug in their heels” with a view to convincing me that each of them is better suited to have final say when it comes to the major decisions in Gabriel’s life (education, health, religion and extra-curricular activities).
[20] Accordingly, I must decide whether the parties are able to communicate with each other sufficiently to engage in an effective joint decision making process, and if not whether (a) final decision making ought to be granted to only one of the parties, and (b) if so, what appropriate parameters may be placed upon this final decision making ability.
The Agreement
[21] Jordan commenced this application in early June 2013. In or around mid-August 2013, the parties participated in a mediation session which they described as “unproductive”. A motion had been scheduled to proceed on August 23, 2013, and the day before the motion both Jordan and Laura met at Jordan’s house during which time they put aside their differences and attempted to bridge the gaps in their respective positions.
[22] Over the course of several long hours (including a break during which Laura left to run an errand and then returned), Jordan and Laura drafted a six page, handwritten agreement. They each took turns putting pen to paper; Laura wrote out pages 1, 2, 4 and 6, while Jordan wrote out the middle pages. While each of Jordan and Laura had legal representation at the time, they decided to proceed with negotiating the Agreement on their own.
[23] Before I comment further on the Agreement, I must let each of Jordan and Laura know that they are to be commended for their efforts. While their lawyers have described this dispute as a high conflict case (and there are examples of a great divide between the parties), it is trite to state that in family law proceedings, it is always desirable that parties settle their own affairs. In the absence of traditional contract defences which permit the Court to conclude that one party has been the victim of the other, the Court will generally uphold the terms of a valid, enforceable domestic contract.
[24] When Jordan and Laura sat down together, and put Gabriel’s interests first, they came up with an Agreement which (as described below) more than reasonably addressed issues of custody (joint) and residence/access (shared), all the while looking out for, protecting and supporting Gabriel. I thus pause in these Reasons to praise Jordan and Laura for their hard work.
[25] As stated, the Agreement was extensive. It provided both Jordan and Laura with joint custody of Gabriel, with no primary residence as Gabriel was to be “shared equally by mom and dad”. Gabriel’s passport and birth certificate were to be placed in a jointly held safety deposit box, and his health card would travel with him.
[26] At Laura’s request, Gabriel would attend Williamson Road Public School. Jordan was responsible for Gabriel’s appointments with any doctors and dentists.
[27] The parties further agreed that Gabriel could be converted to Judaism (as Jordan is of the Jewish faith). Of note (and I will have more to say about this hereinafter), the parties also agreed upon the following:
“8. Gabriel will have Jordan’s last name. He will henceforth towards be known as Gabriel Danger Savage Koplowitz. We are going to change Danger and take it out in the interest of his name not sounding completely ridiculous.”
[28] With respect to residence/access, Gabriel was to stay with Jordan from Wednesdays to Saturdays, and with Laura from Sundays to Tuesdays. During the summer months, Gabriel would stay with Laura from Mondays to Thursdays, and with Jordan from Fridays to Sundays.
[29] The parties further agreed upon variations to that general schedule with respect to long weekends and holidays, including religious holidays. On Gabriel’s birthday, both parents were entitled to see him, and they would alternate spending the day with Gabriel.
[30] Overall, Jordan and Laura agreed upon a comprehensive residence and access schedule that not only precluded the need for the pending motion, but essentially sought to resolve all custody and access issues in this proceeding. Indeed, if I had been asked to enforce this Agreement as a domestic contract (which, regrettably, neither party did), I would likely have done so.
The Need to Formalize
[31] Both parties thought it prudent to send their handwritten Agreement to their respective lawyers with a view to having it reviewed and then codified into a formal agreement and/or court order. At 6:02 pm on August 22, 2013, Laura’s lawyer sent an email to Jordan’s lawyer stating as follows:
“I have been advised by my client that an agreement has been reached with respect to Gabriel’s school arrangements and long-term schedule. I understand the parties will be putting the terms they have agreed to in writing and will be forwarding same to you and I. This is a significant and positive development.”
[32] Jordan’s lawyer then suggested that the agreement be formalized. Laura’s lawyer offered to prepare the first draft, stating in response:
“Thank you for your e-mail. I have reviewed the consent and I am awaiting instructions from my client, although the consent looks substantially the same as what I had discussed with my client on Friday, August 23, 2013. Thus I expect to receive confirmation from my client that I may proceed to implement the consent into the Draft Parenting Agreement. I will do this as soon as possible after discussing the consent with my client. I will write to you once I have heard from my client.”
[33] On September 6, 2013, Laura’s lawyer advised Jordan’s lawyer that he had spoken with Laura with respect to the parties’ agreement, and that he would forward a Draft Parenting Agreement to Jordan’s lawyer within five days.
Laura Reneges
[34] Despite those representations, a Draft Parenting Agreement was never prepared by Laura’s lawyer, or for that matter Jordan’s lawyer.
[35] Instead, the parties experienced difficulties in the implementation of the agreed upon residence and access schedule. Both parties testified that within three weeks of signing the Agreement, Laura was unhappy with its terms. Laura testified that she started to feel tension again as her contact with Jordan increased, and she found him to be inflexible when she asked for small variations in the residence and access schedule.
[36] In an exchange of text messages between the parties on September 12, 2013, Jordan repeatedly asked Laura if she was intent on “breaking their agreement”. While Laura would not specifically confirm that she was “breaking the agreement”, she repeatedly stated that she “wanted more time with Gabriel within the agreement” because the schedule wasn’t “working for her” as she “did not have enough time with Gabriel.”
[37] Jordan’s lawyer argued that Laura reneged on the agreement, and this was the first of many examples of Laura’s tendency to unilaterally take matters into her own hands when she no longer liked the result.
[38] When Laura sought to vary the Agreement within three weeks of its execution, she wanted more time with Gabriel than the Agreement apparently provided. “More” is a word which transcends the confines of a family proceeding. A parent may want more spousal or child support. A spouse may ask that more income be imputed to the other spouse. A parent may crave more time with his/her child. However, the Court must always take the best interests of a child into account – no more, no less.
Criminal Charges
[39] Both Jordan and Laura admitted to often having heated arguments. Witnesses called by Jordan described those arguments as passionate with both parties not backing down from each other due to their strong personalities and stubbornness. Witnesses called by Laura described those arguments as loud and confrontational, with Jordan being the more aggressive of the two.
[40] There were two specific incidents which allegedly involved a physical altercation. The first incident occurred on June 4, 2010 when Gabriel was almost nine months old, and three months before Jordan and Laura’s wedding. Laura testified that Jordan had been violent on a few prior occasions, pushing her to the ground during her pregnancy and punching a hole in the wall at their home. On that particular day, Laura stated that during the course of a heated argument, Jordan strangled her (or at a minimum grabbed her by the neck) and threw her into a door.
[41] After this altercation, Laura called her friend Paul Evans (“Paul”), who also testified at the trial of this proceeding. Paul stated that Laura declined to attend a baseball game with him that evening, and that during their conversation Laura told him about the incident. Laura went to Paul’s house, and they walked together to the Dawes Family Practice & Walk-In Clinic where Laura saw a doctor named Dr. Zaman. Laura has produced a clinical note from Dr. Zaman dated June 4, 2010, which, inter alia, states “boyfriend grabbed her neck and threw her against wall this morning at 6:30 a.m.”
[42] Dr. Zaman was not called as a witness at trial. The balance of his handwritten note is difficult to read although he did observe no “mark on neck” that day.
[43] Jordan described the incident differently. He testified that he is generally non-confrontational, but Laura was a “yeller and screamer” who would stand in his way to physically cut him off from walking away during an argument. On that day, he described Laura as having charged at him while screaming at him incessantly. He stated that Laura pushed him, but he never raised a hand to her. He stated that he likely pushed Laura out of his way to get away from her and avoid further argument.
[44] The second incident occurred post-separation on September 17, 2013. Jordan and Laura had attended a parents’ event at Gabriel’s school, and a dispute arose between them after the event while they were near Laura’s vehicle. Laura testified that Jordan was extremely angry and used his fist to forcibly push/pin her against her vehicle while threatening and yelling at her. Jordan denies Laura’s allegations.
[45] Laura went to report the incident to the police that day. The police decided not to lay any criminal charges arising from the September 17, 2013 incident, but in the course of the investigation Laura was asked about any historical incidents of domestic violence, and she described the June 4, 2010 incident. She was then asked to give a videotaped statement on September 18, 2013, focusing on the June 4, 2010 incident. The police thereafter obtained a copy of Dr. Zaman’s medical note.
[46] Jordan was formally charged on October 3, 2013 with assault in relation to the June 4, 2010 incident. One of his recognizance terms was an undertaking prohibiting him from communicating in any way with Laura or being in the same place as her. This term obviously made it quite difficult for the parties to work together with respect to Gabriel’s shared residence and access during this time.
[47] During an April 11, 2014 court attendance, the Crown stayed the criminal charges against Jordan, advising the Court that it was not in the public interest to proceed and that this family proceeding factored in the progress of the criminal charges. The Crown did nevertheless advise that he believed there was a reasonable prospect of conviction.
[48] While the criminal charges were still active, Jordan complained of an incident when Laura came to Jordan’s house to apparently pick up Gabriel. Jordan was concerned that he was breaching his recognizance terms, and contacted the police, who came to his home. Jordan gave Gabriel to the police, along with a $200.00 child support cheque which he owed to Laura. The police then brought Gabriel and the cheque to Laura.
[49] In addition, during the time when the criminal charges were pending, Laura posted the following to her Facebook page:
“This is rather personal, but I had to post this. This was exactly what my asinine ex-husband said as I walked out the door: “You’ll be back. You’ll never make it without me.”
BA HA HA HA HA.
Those words motivated me like no others could since I decided to end the madness in Summer 2012. Suck it buddy. Suck it.”
[50] A few of Laura’s Facebook friends commented on that post, and in one of Laura’s exchanges replying to those comments, she posted the following:
“Precisely. There is no part of my life that isn’t better either than having to share Gab time with him. The same asinine ex-husband has a criminal record and only has a job ‘cause his dad gave him one.”
[51] Obviously, Jordan did not have a criminal record at that time, nor did he end up being convicted of the charges, which were stayed.
[52] After Jordan’s counsel demanded that Laura remove the comment and post an apology, she posted the following:
“I have been told to say the following: recently I made a post of this page in which I stated that “my ex-husband now has a criminal record”. He does not have such a record as he only had criminal charges and those charges were stayed. I was wrong when I wrote this. I apologize for my mistake.”
[53] In her testimony, Laura described her initial Facebook posting as a “lapse in judgment”. Notwithstanding, her public apology was expressly based upon “being told to apologize”.
Laura’s Concerns about Gabriel
[54] In or around 2013, Laura became concerned that Gabriel was displaying certain characteristics and behavioural patterns indicative of autism or perhaps Asperger’s syndrome. She noted that Gabriel often flapped his arms like a bird, and had various obsessive behavioural patterns. She approached Jordan with a view to having Gabriel formally assessed by a specialist.
[55] Jordan did not provide his consent to Laura’s request. Jordan testified that he did not share Laura’s view, and did not believe that any of Gabriel’s behaviour or behavioural patterns were concerning.
[56] At that time, Gabriel had been a patient of Dr. Norman Blustein (who is coincidentally Jordan’s cousin), who has practiced as a pediatrician in Ontario since 1988. Dr. Blustein tendered a letter dated September 12, 2016 advising that, in his view, Gabriel’s growth and development were normal, he did not have any major concerns about him based upon his own screening assessments, and did not feel that Gabriel needed any specialist assessment or treatment. All of the above was excerpted from Dr. Blustein’s letter, as he did not testify at the trial of this proceeding.
[57] Laura was admittedly frustrated, as in her mind, Gabriel’s behavioural patterns were repeating themselves. Laura testified that at least one teacher from Gabriel’s school advised her that Gabriel appeared to display conduct consistent with autism. There was no direct, admissible evidence from any teacher (or any other witness) at trial which could confirm Laura’s testimony in this regard.
[58] In any event, as a concerned mother, Laura took the matter into her own hands. Initially, Laura took Gabriel to the Apple Tree Clinic where he saw Dr. Raut (a different family physician). Dr. Raut referred Gabriel to Dr. Neeta Patel because Gabriel was suffering at the time from bilateral eye lid swelling. Dr. Patel saw Gabriel on January 22, 2014 and February 24, 2014. During those visits, Laura raised her concerns with respect to Gabriel’s behavioural patterns with Dr. Patel, and requested that Dr. Patel refer Gabriel to a developmental pediatrician.
[59] A letter dated October 6, 2014 from Dr. Patel was tendered as an exhibit at trial. Like all other specialists in this case, Dr. Patel did not testify. According to the letter, Dr. Patel noted that Laura had spoken with Jordan about their attendance with Dr. Patel, but within a few days Jordan had telephoned Dr. Patel’s office advising that he did not want any referral to a developmental pediatrician to be carried out as Jordan had not observed any of the behavioural concerns identified by Laura.
[60] This did not stop Laura from finishing what she had started, and ultimately arranging for a referral to a developmental pediatrician.
[61] Laura learned of a specialist in developmental pediatrics and behavioural problems in children named Dr. Mark Handley-Derry. She did not tell Jordan of Dr. Handley-Derry, and in order to secure a referral she made no mention of the fact that she and Jordan shared joint custody of Gabriel (thereby avoiding the securing of Jordan’s consent to any such referral). Laura testified that she felt “forced to lie” to medical professionals about her custody arrangements, but it was the only way Gabriel could be properly assessed and her concerns addressed and hopefully alleviated.
[62] Laura took Gabriel to see Dr. Handley-Derry in the fall of 2014. Dr. Handley-Derry produced a report dated October 14, 2014. Again, he did not testify at trial. Dr. Handley-Derry concluded that while Gabriel did show some features consistent with an autism spectrum disorder, those features were not significant. When Gabriel did flap his arms, the flapping was not prolonged or intense. Overall, Dr. Handley-Derry concluded that Gabriel did not show sufficient features to warrant a diagnosis of an autism spectrum disorder.
[63] Jordan was only told about Gabriel’s attendances with Dr. Handley-Derry afterwards. Jordan was obviously quite upset, and sought to speak to Dr. Handley-Derry. Jordan did so, and shared his own experience and observations regarding Gabriel. Jordan was nevertheless relieved with Dr. Handley-Derry’s diagnosis, even though Jordan did not feel that any assessment was warranted in the first place.
Gabriel’s Dentist
[64] The Agreement contemplated that Jordan would arrange for all of Gabriel’s doctor and dental appointments. Prior to the parties signing the Agreement, Gabriel began seeing Dr. Sean Ostro at Vaughan Children’s Dentistry.
[65] Jordan took Gabriel to each appointment with Dr. Ostro. At one point, there was some concern that Gabriel may be missing one tooth, as x-rays had shown the existence of a tooth but Dr. Ostro was unsure whether it was an extra tooth or an adult tooth. Dr. Ostro advised Jordan that since Gabriel was only 4 ½ at the time, he would re-evaluate the situation when Gabriel was six at which time Dr. Ostro could assess whether the tooth was an extra tooth or an adult tooth.
[66] Rather than agree with Dr. Ostro’s proposed “wait and see approach”, Laura scheduled her own appointment with a new dentist to see Gabriel. While not much came of this as ultimately Dr. Ostro was able to determine that Gabriel’s tooth ultimately did come in (but was simply late), Jordan submitted that Laura’s response was in line with her “making mountains out of molehills” approach to co-parenting.
School Attendance
[67] Each of Jordan and Laura is responsible for getting Gabriel to school on time while Gabriel is in their respective care and control.
[68] In mid-April 2016, the school’s Vice-Principal delivered a letter to “Gabriel’s parents” advising that he had been late to school 10 times between December 1, 2015 – March 31, 2016, and this fell below the Toronto District School Board’s attendance expectations and requirements.
[69] Jordan did not recall Gabe being late while he was under his care and control. Jordan obtained Gabriel’s statement of attendance from the school, and saw that virtually every late attendance was when Gabriel was with Laura.
[70] Laura confirmed at trial that this was true, as she often experienced difficulty in getting Gabriel to school on time. She further testified that she had Gabriel get himself dressed every morning, and with a view to teaching Gabriel “independence”, she sought to make Gabriel more responsible for getting himself to school.
[71] In response to the Vice-Principal’s letter, Laura reached out to the school for suggestions as to how to get Gabriel to school on time, as she thought an immediate consequence was appropriate (as opposed to, for example, precluding Gabriel from watching television after school many hours later). Laura testified that the school suggested that in the event Gabriel was late again, he would be precluded from participating in recess with the other children. Laura agreed, and has found that Gabriel has been on time for school much more often than before.
[72] For his part, Jordan disagreed with this approach entirely, as he believed it was Laura’s responsibility as a parent to ensure that Gabriel gets to school on time, and not live in fear of missing out on recess with his friends. On one morning in particular, Jordan was getting Gabriel ready for school and suggested that he cut Gabriel’s fingernails before they departed. Jordan testified that Gabriel burst into tears and became extremely anxious because he did not want to miss any recess. Jordan then asked the Vice-Principal to refrain from “recess punishments”.
The OCL
[73] At the request of Laura, Justice Kruzick made an order dated March 9, 2015 to involve the OCL in this proceeding. The OCL engaged Shannon Deacon, MSW & RSW (“Deacon”) to carry out an assessment pursuant to section 112 of the Children’s Law Reform Act. Deacon met with Jordan, Laura and Gabriel, and also interviewed other individuals necessary for the purpose of preparing the OCL’s report. Deacon also testified at trial.
[74] While Deacon found Gabriel very comfortable with both Jordan and Laura, she testified that she felt Laura was somewhat anxious about the entire process and the conflict itself. Deacon had obvious concerns with both parents contributing to that conflict, and its impact upon Gabriel. In interviewing Laura, Deacon learned that Laura wrongfully advised Dr. Handley-Derry that Gabriel spent more time with Laura than Jordan.
[75] Deacon spoke with the principal at Gabriel’s school, Gabriel’s teacher, Dr. Blustein and Dr. Handley-Derry. She found that Jordan and Laura used different approaches to parenting: Jordan was more laid back, while Laura was more anxious.
[76] Deacon had no doubt that both Jordan and Laura love Gabriel very much and want what is best for him, but due to their difficult feelings towards one another, they were unable to adapt to the changes that often arise in co-parenting arrangements without engaging in further conflict.
[77] While Deacon believed that Laura’s experiences with Jordan being abusive, intimidating or controlling were real, Gabriel does not experience his father that way. In Deacon’s view, Laura appeared to be reluctant for Gabriel to have an ongoing relationship with Jordan although Laura was not discouraging or preventing the relationship itself.
[78] Tellingly, Deacon observed that Laura had taken steps to dis-involve Jordan in Gabriel’s care, both at school and with medical professionals, and while Laura saw her actions as necessary to help Gabriel, Deacon believed they had the opposite effect by creating more difficulty.
[79] In summary, Deacon found Laura to be, at present, “unable to reflect on the different perspectives of the conflict…and struggling to see how she might promote an ongoing parenting relationship with Jordan”. In the end, Deacon proposed a parenting plan and residence/access schedule which, ironically, mirrored nearly all of the terms which Jordan and Laura had negotiated into the Agreement. Deacon further recommended that in the event Jordan and Laura were unable to make major decisions together about Gabriel, it should be Jordan that has final decision making authority.
[80] Jordan testified that when Deacon met with him and Laura to review and discuss Deacon’s findings, after Deacon told them of her decision to recommend Jordan having final decision making authority, Laura was so upset that she got up and left the room. I have no doubt that Laura was quite upset with Deacon’s recommendation, and draw no adverse inference from Laura’s decision to walk out of the room. This was no doubt a most upsetting result, even if Laura was the one who invoked the OCL’s participation in the first place.
[81] Laura opposed the OCL’s report and filed a 27 paragraph affidavit taking issue with Deacon’s fact finding methods, conclusions and recommendations. Laura testified that she felt that Jordan was given more time to speak with Deacon than her, and she felt that Deacon simply didn’t believe her. The OCL then delivered a letter dated December 23, 2015 to Laura which stated, inter alia:
“The most important fact, however, is that these recommendations are only recommendations and the ultimate decision making rests with individuals involved, in terms of settlement and the Bench in terms of the legal system.”
[82] To her credit, Laura followed some of Deacon’s recommendations including setting up an account with www.ourfamilywizard.com. Despite asking Jordan to communicate with her through www.ourfamilywizard.com, Jordan has yet to set up his own account.
Decision
[83] Even though Jordan seeks an order for joint custody (albeit in the alternative), that still does not mean that it is in Gabriel’s best interests that a joint custody order be made. As held by the Court of Appeal for Ontario in Kaplanis v. Kaplanis 2005 1625 ONCA, “hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order for joint custody. There must be some evidence before the Court that, despite their differences, the parents are able to communicate effectively with one another.”
[84] The comments of Justice Gray in Warcop v. Warcop 2009 ONSC 6423 are apposite and helpful:
“The best interests of a child will obviously not be fostered if the parents are unable to communicate and cooperate in making decisions that affect the child. However, a standard of perfection is not required, and is obviously not achievable. This issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interest of the child can be ensured on an ongoing basis.”
[85] While Jordan and Laura have, for the most part, been able to agree upon residence/access issues, in my view, Jordan and Laura have been unable to maintain informative, courteous and respectful communications on a day to day basis. Laura has effectively ceased text messaging Jordan altogether, and now only communicates by email (although, as stated above, she has opened an account with www.ourfamilywizard.com).
[86] When Jordan and Laura drafted the Agreement, they were desirous of a joint custody arrangement. Over the last three years, their relationship has become replete with mistrust, disrespect and poor communication. Given my findings set out above, I am unfortunately of the opinion that there is little hope that the current situation will change. While the Court is always hopeful that communication between parents will improve once the underlining litigation is concluded, I do not find such an expectation to be reasonable on the facts of this case.
[87] Neither party sought an order enforcing the Agreement, despite the OCL report essentially adopting most of the Agreement’s terms. Laura has refused to provide Jordan with her new address, and consistently arranges to drop off or pick up Gabriel either at school or from Jordan’s house (or alternatively involves their respective parents). Jordan believes Laura is overbearing and over-reactive, while Laura believes Jordan has his proverbial head in the sand when it comes to Gabriel’s health and well-being.
[88] Accordingly, I decline to make an order for joint custody of Gabriel. The issue then becomes which of Jordan or Laura is best suited to make decisions with respect to Gabriel’s major issues (i.e. school, religion, health, etc.).
[89] Laura points to Jordan having committed violence or abuse against her in the past, and its detrimental effect upon Jordan’s ability to act as a parent. While I agree that is a relevant consideration for the Court (as codified in section 24(4) of the Children’s Law Reform Act), and without condoning what Laura describes as incidents of assault, violence or abuse amounts to one factor to be considered. As Laura herself testified, Jordan remains a good parent to Gabriel. Jordan shares the same view of Laura.
[90] With some adjustments, the OCL’s parenting plan with respect to residence/access makes very good sense, especially in light of the fact that it adopts most, if not all, of the salient terms of the Agreement negotiated by Jordan and Laura. The one major bone of contention is Deacon’s recommendation that Jordan be given final say with respect to the major issues.
[91] To begin, as it in Gabriel’s best interests that the “maximum contact” principle fosters Jordan and Laura sharing in parenting time equally, I am prepared to implement Deacon’s parenting plan with some minor modifications detailed hereinafter. This should not come as a shock to either Jordan or Laura, as they have been essentially conducting themselves in accordance with the “maximum contact” principle from the outset of this dispute, and it will not be difficult for them to continue in the same manner on an ongoing basis.
[92] Jordan argued that despite Laura’s obvious love for Gabriel, she has displayed a consistent tendency to take unilateral action or implement changes when she is not satisfied with the way things have turned out. Jordan points to (a) her reneging on the Agreement, (b) her unilaterally choosing a new dentist without consulting Jordan, (c) her over reaction with respect to Gabriel’s alleged behavioural patterns; (d) her refusal to accept Jordan’s views that Gabriel did not require a developmental pediatric assessment; and (e) most importantly, her “fudging the facts” to leave Dr. Handley-Derry with the impression that she spent far more time with Gabriel and thus did not require Jordan’s consent to the scheduling of the assessment. I agree with Jordan’s submissions which are fully supported by the evidence, and I find that Jordan is in the better position to make the final decisions on major issues concerning Gabriel’s education, medical and health requirements and religious activities and practices.
[93] The parties had agreed upon the religious aspects of Gabriel’s life and, presumably, will continue to parent jointly and accordingly. They have also agreed upon Gabriel’s schooling to date (apart from the issue with his late attendances). The evidence at trial was mostly concerned with decisions made in respect of Gabriel’s health. While I can understand Laura’s desire to ensure that there was “nothing wrong” with Gabriel, in a situation such as this, she cannot parent or take action unilaterally, and to the exclusion of Jordan. Regrettably, she has done so.
[94] Both Jordan and Laura need to de-escalate the level of conflict that exists between them. I believe that both Jordan and Laura know this, and appreciate it. However, Laura has shown signs of placing her own concerns over those of Jordan, and most importantly Gabriel, insofar as she has created unnecessary conflict by acting unilaterally.
[95] Accordingly, I make the following order:
(a) Jordan and Laura are to make decisions about Gabriel’s needs and care together. Decision making with respect to major issues that relate to Gabriel’s education, health, religion and extra-curricular activities shall proceed on the premise that Jordan and Laura shall first make best efforts to work towards a mutually agreed upon decision;
(b) either or Jordan or Laura may raise with the other any major issues for consideration by communicating with the other in writing (either by email or text), and specifying:
(i) the issue at hand,
(ii) any relevant concerns,
(iii) any potential options available; and
(iv) that parent’s recommended course of action, to be supported, if necessary, by any relevant advice and/or recommendations from an arm’s length third party professional.
(c) in the absence of urgency, the parent receiving the text or email communication shall have seven days to respond in kind. In the absence of the parties agreeing upon the issue, the responding parent shall;
(i) identify his/her concerns,
(ii) identify any alternative options available; and
(iii) propose his/her preferred alternative course of action with supporting reasons for same.
(d) if an agreement can still not be achieved, Jordan shall make the final decision. In such circumstances, Jordan is to communicate with Laura in writing to explain his decision with reference to Gabriel’s best interests, and set out the reasons for his decision all the while taking Laura’s concerns into account.
(e) both Jordan and Laura are to communicate regularly about Gabriel’s needs and care by using www.ourfamilywizard.com (with any account fees to be shared equally by Jordan and Laura).
(f) during the school year, Gabriel shall be with Laura from Sunday morning (9:00 a.m.) to Wednesday morning (taking him to school). Gabriel shall be with Jordan from Wednesday after school until Sunday morning (9:00 a.m.).
(g) to avoid conflict, and in the absence of an agreement between the parties, Gabriel shall be retrieved on Sunday mornings from Jordan’s home by Laura’s grandparents (although I would hope with the benefit of these reasons that the parties can agree upon Laura going to Jordan’s home for that purpose).
(h) on any P.A. school days, Gabriel is to spend that day with the parent with whom he is already staying, unless that parent is unable to make arrangements in which case he/she will ask the other parent to be with Gabriel (prior to seeking any alternative child care).
(i) Gabriel shall spend a full weekend at each of Jordan and Laura’s home once per month. Those full weekends shall be two weeks apart, and shall commence within two weeks of these Reasons. When Laura has Gabriel for the full weekend, she will pick him up from school on Friday and keep him until Wednesday mornings. When Jordan has Gabriel for the full weekend, Gabriel will stay at Jordan’s home from Wednesday after school until Monday morning.
(j) during the summer months (i.e. from the first Monday in July until the start of school after Labour Day), Gabriel shall be with Laura from Monday mornings (9:00 a.m.) until Friday mornings (9:00 a.m.), at which time Jordan will pick him up and spend the weekends with him. In addition, Jordan shall have Gabriel for two full, uninterrupted weeks (i.e. from Friday morning at 9:00 am until the following Sunday at 9:00 am). One of those weeks shall be in July (at Laura’s choice) and one of those weeks shall be in August (at Jordan’s choice).
(k) during the summer months, Laura shall also have Gabriel for two full weekends, one in July (Jordan’s choice) and one in August (Laura’s choice). After these two full weekends, Gabriel is to be returned to Jordan’s home on Wednesday at 9:00 a.m. and remain there until Sunday morning at 9:00 a.m. at which time Laura will retrieve him.
(l) each of Jordan and Laura are to send an update through www.ourfamilywizard.com on the day that Gabriel leaves their respective home to go to the other parent, and provide any information about his health, behaviour, routine or school activities as needed.
(m) each of Jordan and Laura is to notify the other parent in writing of their choice for full summer weeks and the weekends prior to May 15th of each year.
(n) on Gabriel’s birthday, he is to spend his birthday morning at the home of the parent with whom that day is regularly scheduled, and is to be picked up after school (or at 4:00 p.m. if his birthday falls on a weekend) by the other parent.
(o) Gabriel shall spend Mother’s Day with Laura, and Father’s day with Jordan.
(p) with respect to the Jewish Holidays, Gabriel shall spend (i) the Rosh Hashanah and Yom Kippur high holidays including the evening before each one, (ii) the first night of Chanukah, and (iii) the first two nights of Passover with Jordan. If those Jewish holidays fall on days that Gabriel is scheduled to be with Laura, he will be picked up from school by Laura on the school day following the Jewish holiday and remain with her until the next regular exchange time.
(q) Gabriel shall spend Easter weekend with Laura commencing at 4:00 p.m. on the Thursday preceding Good Friday and remaining with Laura until the next regularly scheduled exchange.
(r) with respect to Christmas holidays, Gabriel is to be with his mother from the end of the last day of school until the following Sunday at 4:00 p.m. at which time he will be returned to Jordan and spend the following (second holiday) week with Jordan. Gabriel shall spend New Year’s Eve with Jordan this year, and that evening shall alternate between Jordan and Laura each year thereafter.
(s) with respect to the March break holidays, Gabriel should alternate spending that week with each parent commencing with Jordan who is to pick Gabriel up from school on the last day and keep him until the following Friday at 9:00 a.m., at which time he will go with Laura for the weekend.
(t) Gabriel shall have phone contact with the parent from whom he is away at least once a day at a time which is convenient to his routine. The phone contact shall occur before 8:00 p.m. and shall be initiated by the parent with whom he is with on that day.
(u) to the extent that any section 7 expenses arise, Jordan and Laura shall share equally in funding the cost of same;
(v) Jordan and Laura shall not schedule any sporting or extra-curricular events on days when Gabriel is scheduled to be with the other parent. Gabriel is to be taken to any sporting or extra-curricular activities by the parent with whom he is with on that date. Jordan and Laura shall discuss and agree upon the sporting and extra-curricular activities, in which he will be registered, with Gabriel’s input as he gets older;
(w) Gabriel is to remain in the care of Dr. Blustein as his family doctor, and Dr. Ostro as his dentist, unless both Jordan and Laura agree otherwise. Both parents are permitted to attend all medical or dental appointments together, and Gabriel’s OHIP card shall travel with him. If either Jordan or Laura has to take Gabriel for any emergency medical care, they are to notify the other parent prior to doing so and provide a copy of any reports and recommendations to the other parent and to Dr. Blustein or Dr. Ostro if and when necessary;
(x) for the purpose of scheduling all of Gabriel’s appointments with Dr. Blustein and Dr. Ostro, Jordan is responsible for same and will consult and consider Laura’s availability when scheduling those appointments, providing her with at least 48 hours’ notice before the appointments;
(y) Gabriel’s passport is to remain in a jointly held safety deposit box, and both Jordan and Laura must be present when it is released. Any costs for the safety deposit box is to be shared equally by both parents.
(z) in the event either parent wishes to travel with Gabriel during their scheduled time, they will notify the other parent with their plans on at least 14 days’ notice and will provide the other parent with a detailed itinerary including proof of return.
Issue #2 What is the proper amount for child support, and should Jordan be given any credit(s)s for payments he has made to Laura to date?
[96] Jordan has been paying $200.00 per month to Laura since early 2013. Child support payments shall continue, but Jordan seeks some adjustments because of the impact Laura’s annual income has had upon the actual support payments he should have made pursuant to the Child Support Guidelines.
[97] There does not appear much dispute that Jordan earns approximately $40,000.00 in annual income. Indeed, in the Divorcemate calculations provided by Laura’s lawyer, the sum of $40,000.00 was used as Jordan’s income for the purpose of those calculations. I thus find Jordan’s annual income to amount to $40,000.00
[98] Section 19(1) of the Child Support Guidelines allows the Court to impute income to a spouse it the Court considers it appropriate in the circumstances for the purpose of calculating child support. As held by the Court of Appeal for Ontario in Homsi v. Zaya 2009 ONCA 322, there is an onus upon the person requesting an imputation of income to establish an evidentiary basis for such a finding.
[99] Jordan appears to accept that Laura earned $24,000.00 in 2014 and $27,000.00 in 2015. There was very little evidence tendered at trial with respect to Laura’s income for the 2013 and 2016 years. On cross-examination, Laura testified that she believes her income for this year will be approximately the same as 2015 ($27,000.00). Laura is a music teacher and owns her own music school business. At paragraph 5 of Jordan’s Amended Application, he states “Laura’s annual income is unclear”. Laura has already admitted to earning approximately $27,000.00 in 2015, and expects this year to be similar. I simply do not have enough evidence to grant Jordan’s request that I impute an additional $3,000.00 in annual income to Laura.
[100] Based upon the limited information provided to date, I find Laura’s income from 2013 – 2016 to be as follows:
YEAR
INCOME
2013
$13,000.00
2014
$24,000.00
2015
$27,000.00
2016
$27,000.00
[101] The parties can use Divorcemate to calculate the amount of support due from Jordan to Laura in each of the 2013 and 2016 years using the Child Support Guidelines Table. Jordan will be owed a credit by reason of slight overpayments made during those years. Laura need not repay Jordan that sum (to be calculated by counsel by the parties), but that sum shall stand as a credit going forward toward Jordan’s future child support payments which according to the Child Support Guidelines amount to $141.00 per month and I so order Jordan to make those $141.00 payments going forward once the credit is applied. A Support Deduction Order shall issue. The parties may contact my assistant Michelle Giordano at michelle.giordano@ontario.ca to set up a conference call if they encounter any difficulties in implementing this child support order.
[102] Jordan shall be allowed to make the dependent credit for income tax purposes retroactively to 2013 and going forward.
Issue #3: Should Gabriel’s name be formally changed to Gabriel Savage Koplowitz?
[103] It was a term of the Agreement that Gabriel’s name be changed to Gabriel Savage Koplowitz. As previously stated, neither party sought specific performance of the Agreement, and there was very little, if any, evidence tendered by both parties with respect to Jordan’s request that Gabriel’s name be changed.
[104] In Zho v. Chen 2000 ONSC 22442, Justice Nelson held that in order to grant the relief sought by Jordan, “the Court must find that a change of name as an incident of custody would be in the best interests of the child whose name is sought to be changed.”
[105] Despite several opportunities to lead evidence on this issue, neither Jordan nor Laura provided any substantive testimony either for or against the proposed name change. This issue was not canvassed with Deacon, and apart from Laura being upset on at least one occasion with the school using “Koplowitz” as Gabriel’s last name, there was no evidence in the record to assist me in determining whether changing Gabriel’s name would be in his best interests as an incident of custody.
[106] Normally, a party can apply under section 5 of the Change of Name Act R.S.O. 1990 c. C-7 to apply for the change of a name of a child. Technically, no such application was brought before me and since neither party sought specific performance of the Agreement, I am left in a vacuum as to whether and how to address Jordan’s request.
[107] As a result, I am not prepared to grant Gabriel’s name change on the record before me. Nothing in these Reasons precludes Jordan from bringing a further application at a future date, with Laura reserving all of her rights and interest to oppose such an application.
Costs
[108] I would strongly urge Jordan and Laura to try and resolve the issue of costs of this application. In the absence of such agreement, I am prepared to receive and review written costs submissions from both parties.
[109] Jordan may serve and file his costs submissions within ten business days of the release of these Reasons. Those submissions shall be no more than five pages including a Bill of Costs.
[110] Laura shall thereafter have an additional ten business days from the receipt of Jordan’s costs submissions to deliver her responding costs submissions, which shall also be no more than five pages including a Bill of Costs.
Diamond J.
Released: October 31, 2016
CITATION: Koplowitz v Savage, 2016 ONSC 6629
COURT FILE NO.: FS-1387171
DATE: 20161031
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JORDAN KOPLOWITZ
Applicant
– and –
LAURA KATHERINE SAVAGE
Respondent
REASONS FOR DECISION
Diamond J.
Released: October 31, 2016